As NBA, NFL, and MLB players use their platforms to promote racial justice and ballot access, eight University of Nebraska football players are setting their sights closer to home. Yesterday they filed suit in the District Court of Lancaster County, Nebraska, to reinstate the fall season claiming breach of contract and tortious interference with business expectancies with the goal of getting a declaratory judgment ordering the Big 10 to reverse itself and let the games begin in September.
Because the real victims of COVID are college athletes forced to attend class like every other student.
The theory of the case is that the Big 10’s bylaws require it to put the decision to postpone the season to a vote, and several participating coaches said no such vote took place.
“Our Clients want to know whether there was a vote and the details of any vote, and whether the Big Ten followed its own rules in reaching its decision,” the plaintiffs’ attorney Mike Flood said. “Sadly, these student-athletes have no other recourse than filing a lawsuit against their conference.”
Claiming that the Big 10 is subject to personal jurisdiction in Nebraska because it hosts games there, the players seek what amounts to a nationwide injunction from a state trial court to force the conference to reinstate play in eleven states stretching from Nebraska to New Jersey. The country is a patchwork of quarantine orders for out-of-state travelers; nonetheless these students demand that a local court give them the right to traverse it at will.
As to standing, the plaintiffs claim to be third party beneficiaries of the conference’s bylaws. Flood attempted to bolster this assertion yesterday in a hearing on a motion to expedite discovery by citing the players’ scholarship obligations to the university, which are “subject to your full compliance with this institution’s policies and the rules, regulations, bylaws, and other legislation of the Big 10 Conference and the NCAA.”
How the students’ contracts with their own school binds the Big 10 to disclose internal deliberations to the players is … unclear. Nor is it clear how supposedly amateur athletes have a cognizable commercial business interest in playing football during a pandemic to “develop their brand and market themselves,” particularly when they are subject to draconian punishment if they even think about monetizing their sport.
But the suit alleges that the Big 10 “intentionally interfered with the Student Athlete Plaintiffs’ business expectancies” and points to the purported lack of compliance with internal bylaws as proof of intent to harm.
The players pooh-pooh the assertion that the conference canceled fall sports to protect the health of athletes and coaches, because big strapping lads like themselves are impervious to disease.
No, really.
Upon information and belief, the Big 10 relied heavily on a study of the health effects of COVID-19 that involved COVID-impacted patients who bear little resemblance to the Student Athlete Plaintiffs, who are much older than the Student Athlete Plaintiffs, and who are not in similar condition as the Student Athlete Plaintiffs. Upon information and belief, the study relied upon has no clinical significance. The purported reliance on such data, which has been sharply criticized nationally and internationally by numerous medical professionals, is also unreasonable and unjustified, and arbitrary and capricious, because it does not take into account significant countervailing safety issues that actually went to the college football environment a safer place for the student athlete plaintiffs when compared to an environment where college football is not being played.
How the players are “safer” crossing state lines to roll on the ground with young men from other states, rather than simply practicing on their own turf, the complaint does not specify. But because the season was originally scheduled to start next week, they’re seeking expedited discovery of the internal deliberations that led to the postponement.
The conference is none too eager to set a precedent opening its internal deliberations to students.
“We are of the strong view that there is no claim here,” said Andrew Luger of Jones Day, who represented the conference at yesterday’s hearing. “Eight students out of hundreds — eight students from one school out of 14 — are seeking to overturn a decision that will affect thousands of people. And they are doing so under the most stretched legal theories that one can imagine.”
Later he added, “These plaintiffs disagree, I understand that,” Luger said. “But that’s not a basis to pick apart (Big Ten) internal processes, to get documents that nobody has a basis to see, for a lawsuit that we are firmly convinced will fail on the merits.”
At the conclusion of the hearing held virtually to protect the parties from coronavirus — of course! — Judge Susan Strong gave the defendant until Monday to file a reply brief.
Lotsa luck, fellas.
Husker football players sue Big Ten; conference says ‘lawsuit has no merit’ [Omaha.com]
Garrett Snodgrass et al. v. The Big 10 Conference, Inc. [Complaint]
Elizabeth Dye lives in Baltimore where she writes about law and politics.